STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2369

Brian William Daury, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed August 22, 2006

Affirmed

Stoneburner, Judge

Anoka County District Court

File No. C3051842

Steven J. Meshbesher, Meshbesher & Associates, P.A., 225 Lumber Exchange Building, 10 South Fifth Street, Suite 225, Minneapolis, MN 55402 (for appellant)

Mike Hatch, Attorney General, Peter D. Magnuson, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)

Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Parker, Judge.*

U N P U B L I S H E D O P I N I O N

STONEBURNER, Judge

Appellant challenges the district court’s order sustaining revocation of his driver’s license. We affirm.

FACTS

Appellant Brian William Daury was stopped for speeding by Columbia Heights police officer Eric Johnston after Johnston observed Daury traveling at a high rate of speed and paced him with the squad car for approximately one-half of a mile. Johnston noticed a strong odor of alcohol coming from Daury and slurred speech. After Daury failed several field sobriety tests, Johnston arrested him for DWI.

Daury’s license was revoked under the implied-consent law. Daury challenged the revocation by filing a form petition on which 13 of a possible 18 issues were checked, including issues related to testing and test results. The implied-consent hearing was scheduled to take place more than 60 days after the filing of Daury’s petition, but a stay of the revocation was issued within 60-days of the filing of the petition.

At the beginning of the implied-consent hearing, the district court asked Daury’s counsel what was at issue. Counsel stated that there were only three issues before the court: (1) a procedural due process challenge under Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340 (Minn. 2005); (2) a challenge to the stop; and (3) a challenge to the arrest. Based on evidence produced at the hearing, the district court sustained the revocation. This appeal followed.

D E C I S I O N

Daury first argues that his right to due process was violated because the implied-consent hearing was not held within 60 days after he petitioned for judicial review. See Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340, 348 (Minn. 2005) (holding that by eliminating the requirement for prompt post-revocation judicial review, the 2003 amendments to Minn. Stat. § 169A.53 violated a driver’s due process rights). The application of law to undisputed facts is a question of law, which this court reviews de novo. Morton Bldgs. Inc. v. Comm’r of Revenue, 488 N.W.2d 254, 257 (Minn. 1992).

A due process argument identical with Daury’s argument was recently addressed by this court in Bendorf v. Comm’r of Pub. Safety, 712 N.W.2d 221, 223 (Minn. App. 2006), review granted (Minn. June 28, 2006). This court held in Bendorf that the remedy for failure to conduct a hearing on a petition for review of a driver’s license revocation within 60 days is a stay of the revocation, not rescission of the revocation. Id. When a driver has received a stay of the revocation, there is no due process violation. See id. at 224. We rejected Bendorf’s argument, also made by Daury in this case, that a stay of revocation is an inadequate remedy because even with a stay, the revocation could be used to enhance sentencing if the driver is arrested for DWI prior to the hearing. Id. We concluded that a defendant does not have standing to challenge an enhancement provision in a criminal statute until the provision is applied against him. Id. Because Daury’s revocation was stayed and he was not actually subjected to a sentencing enhancement, the failure to hold the hearing within 60 days after the petition was filed did not violate his due process rights.

Daury next argues that Officer Johnston did not have reasonable, articulable suspicion to stop him. This argument is without merit because the district court specifically credited Johnston’s testimony, which was based on Johnston’s visual and pacing determinations, that Daury was speeding. Daury relies on Schulberg v. Comm’r of Pub. Safety, 387 N.W.2d 225 (Minn. App. 1986), to argue that “Minnesota prefers that a traffic stop based on excessive speed be supported through radar or an otherwise objective scientific device.” But Schulberg does not announce such a preference and merely supports the established deference to the trial court in matters of credibility. Id. at 227.

“The test for determining the legality of a stop of a motor vehicle is whether the police had a particularized and objective basis for suspecting the driver or passenger(s) of criminal activity.” State v. L’Italien, 355 N.W.2d 709, 710 (Minn. 1984) (citing United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981)). In Sazenski v. Comm’r of Pub. Safety, 368 N.W.2d 408, 409 (Minn. App. 1985), we concluded that an officer’s visual estimation of speed “amply supports the trial court’s determination that the stop was proper.” In this case, the district court found that Johnston’s testimony was credible and that Johnston’s testimony established a particularized and objective basis for the stop.

Daury also argues that he is entitled to rescission of the revocation because the state did not introduce any evidence that he failed a chemical test. Respondent concedes that although there is evidence in the record that Daury took a breath test, there is no evidence in the record of Daury’s test results. But the state argues that this lack of evidence is a result of Daury’s waiving any challenge to the test at the beginning of the implied-consent hearing. We agree. Daury clearly and unequivocally limited his challenges to: (1) the due process violation for failure to hold the hearing within 60 days after the petition for review; (2) the legality of the stop; and (3) the lack of probable cause for arrest. We conclude that Daury waived any issue relating to testing or the test results at the implied-consent hearing, and we decline to consider the argument on appeal. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that this court generally will not consider matters not argued and considered in the district court).

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.